SRC-TAG C.S.S.B. 1477 78(R) BILL ANALYSIS
Senate Research CenterC.S.S.B. 1477
78R15179 PEP-DBy: West
Criminal Justice
5/8/2003
Committee Report (Substituted)
DIGEST AND PURPOSE
It may be difficult to have a deferred adjudication expunged from a
criminal record. While many people have accepted a conviction on deferred
adjudication, they generally do so with the expectation that the offense
will not affect their permanent record. However, as the law currently
stands, a deferred adjudication remains on a permanent criminal record.
This deferred adjudication may impede a person's ability to obtain a
desired job or position for many years after the offense. C.S.S.B. 1477
restricts the disclosure of certain criminal records and sets forth the
duty of law enforcement agencies regarding records associated with certain
defendants receiving deferred adjudication. This bill also provides for a
civil penalty for private entities that violate the nondisclosure
provision regarding a deferred adjudication defendant.
RULEMAKING AUTHORITY
This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Article 55.01(a), Code of Criminal Procedure, to provide
that a person who has been placed under a custodial or noncustodial arrest
for commission of either a felony or misdemeanor is entitled to have all
records and files relating to arrest expunged under certain conditions.
SECTION 2. Amends Section 2(a), Article 55.02, Code of Criminal Procedure
to authorize a person who is entitled to expunction of records and files
under Article 55.01(a) or (d), rather than 55.01(a)(1)(B), 55.01(a)(2), or
55.01(d), or a person who is eligible for expunction of records and files
under Article 55.01(b) to file an ex parte petition for expunction in a
district court for the county in which the petitioner was arrested; the
person who falsely identified himself or herself as the petitioner was
arrested, if the petitioner relies on an entitlement under Article
55.01(d); or the offense was alleged to have occurred.
SECTION 3. Amends Article 55.03, Code of Criminal Procedure, as follow:
Art. 55.03. EFFECT OF EXPUNCTION. Provides that when the order of
expunction is final the release, dissemination, or use of the expunged
records and files for any purpose other than a purpose described by
Section 411.083(a) or (b)(1) or (b)(3) (Dissemination of Criminal History
Record), Government Code, is prohibited.
SECTION 4. Amends Section 411.081, Government Code, by adding Subsections
(d), (e), (f), and (g), as follows:
(d) Authorizes a person, notwithstanding any other provision of this
subchapter, if a person is placed on deferred adjudication community
supervision under Section 5, Article 42.12, (Community Supervision), Code
of Criminal Procedure, subsequently receives a discharge and dismissal
under Section 5(c), Article 42.12, and satisfies the requirements of
Subsection (e), to petition the court that placed the defendant on
deferred adjudication for an order of nondisclosure under this subsection.
Requires the court, after notice to the state and a hearing on whether
the person is entitled to file the petition and issuance of the order is
in the best interest of justice, to issue an order prohibiting criminal
justice agencies from disclosing to the public criminal history record
information related to the offense giving rise to the deferred
adjudication. Authorizes a person to petition the court for an order of
nondisclosure on or after: the discharge and dismissal, if the offense for
which the person was placed on deferred adjudication was a misdemeanor
other than a misdemeanor described by Subdivision (2); the fifth
anniversary of the discharge and dismissal, if the offense for which the
person was placed on deferred adjudication was a misdemeanor under Chapter
20, 21, 22, 25, 42, or 46 Penal Code; or the 10th anniversary of the
discharge and dismissal, if the offense for which the person was placed on
deferred adjudication was a felony.
(e) Provides that a person is entitled to petition the court under
Subsection (d) only if during the applicable period described by
Subsection (d)(1), (2), or (3), as appropriate, the person is not
convicted of or placed on deferred adjudication community supervision
under Section 5, Article 42.12, Code of Criminal Procedure, for any
offense other than an offense under the Transportation Code punishable by
fine only. Provides that a person is not entitled to petition the court
under Subsection (d) if the person has been previously convicted or
placed on deferred adjudication for certain offenses.
(f) Provides that for the purposes of Subsection (d), a person is
considered to have been placed on deferred adjudication community
supervision if regardless of the statutory authorization the person
entered a plea of guilty or nolo contendere; the judge deferred further
proceedings without entering an adjudication of guilt and placed the
person under the supervision of the court or an officer under the
supervision of the court; and at the end of the period of supervision the
judge dismissed the proceedings and discharged the person.
(g) Requires the clerk of the court, when an order of nondisclosure is
issued under this subsection, to send a copy of the order by certified
mail, return receipt requested, to the Crime Records Services of the
Department of Public Safety (DPS). Requires DPS to send a copy of the
order to all law enforcement agencies, jails, or other detention
facilities, magistrates, courts, prosecuting attorneys, correctional
facilities, central state depositories of criminal records, and other
officials or agencies or other entities of this state or any political
subdivision of this state, and to all central federal depositories of
criminal records that there is reason to believe have criminal history
record information that is the subject of the order.
SECTION 5. Amends Subchapter C, Chapter 552, Government Code, by adding
Sections 552.142 and 552.1425, as follows:
Sec. 552.142. EXCEPTION: RECORDS OF CERTAIN DEFERRED
ADJUDICATIONS. (a) Provides that information is excepted from the
requirements of Section 552.021 if an order of nondisclosure with respect
to the information has been issued under Section 411.081(d).
(b) Authorizes a person who is the subject of information that is excepted
from the requirements of Section 552.021 under this section to deny the
occurrence of the arrest and prosecution to which the information relates
and the exception of the information under this section, unless the
information is being used against the person in a subsequent criminal
proceeding.
Sec. 552.1425. CIVIL PENALTY: RECORDS OF CERTAIN DEFERRED ADJUDICATIONS.
(a) Prohibits a private entity that compiles and disseminates for
compensation criminal history record information from compiling or from
disseminating information with respect to which an order of nondisclosure
has been issued under Section 411.081(d).
(b) Authorizes a district court to issue a warning to a private entity
for first violating Subsection (a). Provides that the private entity,
after receiving a warning for the first violation, is liable to the state
for a civil penalty not to exceed $500 for each subsequent violation.
(c) Authorizes the attorney general or an appropriate prosecuting
attorney to sue to collect a civil penalty under this section.
(d) Requires a civil penalty collected under this section to be deposited
in the state treasury to the credit of the general revenue fund.
SECTION 6. (a) Effective date: September 1, 2003.
(b) Provides that changes in law made by this Act to Chapter 55, Code of
Criminal Procedure, apply to a person seeking expunction of records and
files relating to an arrest regardless of whether the arrest occurred
before, on, or after the effective date of this Act.
(c) Provides that the changes in law made by this Act to Section
411.081, Government Code, as amended by this Act, and Sections 552.142 and
552.1425, Government Code, as added by this Act, apply to information
related to a deferred adjudication or similar procedure described by
Section 411.081(f), Government Code, as added by this Act, regardless of
whether the deferred adjudication or procedure is entered before, on, or
after the effective date of this Act.